“You waited too long to report the work accident. We did not know about your injury until months later.”
This statement reflects one of employers’ most common defenses to occupational injury claims: failure to give notice.
Under workers compensation law, you must meet procedural requirements to receive benefits. Even if the substantive law says you qualify for workers comp, you may lose thousands of dollars in income replacement and medical benefits if you fail to follow the claim procedure used to enforce these laws.
For example, you have the burden of proving you reported a work-related injury to your employer within a specific time. Indeed, telling your employer you got hurt is often the first step. Otherwise, you risk losing your case on technical grounds.
This article explains how much time you have to report an injury at work to your employer, the method of notice, and, if you failed to do so within the notice period, how to argue that your claim should remain alive due to actual knowledge, constructive notice, reasonable excuse, or lack of prejudice.
Read on to learn more about the time to report a workplace injury.
If you have questions about your case, complete this form or call (804) 251-1620 or (757) 810-5614 to see if we can help. Our workers compensation law firm has obtained lump sum settlements for hundreds of injured employees in Virginia.
Virginia Code Section 65.2-600, Notice of Accident, requires every injured employee to give written notice of an industrial accident and occupational injury immediately or as soon as practicable.
Generally, you must report the workplace injury to your employer within 30 days of the accident. Indeed, the notice statute says you cannot receive compensation (including temporary total or permanent partial disability payments) or medical benefits unless you give your employer written notice within thirty days after the occurrence.
Though telling your employer about the work injury within 30 days provides protection, there is a good reason not to wait until this deadline approaches.
Part C of the notice statute says that unless you prove the employer or insurer had actual knowledge of the accident or were incapacitated, you cannot recover physician’s fees incurred for treating the injury or wage loss payments that accrue before you report the work accident. Therefore, if you required extensive medical care, including surgery, within a few days of the accident but waited to tell your employer about the injury, you may have to pay for hospitalizations, office visits, diagnostic imaging, and therapy despite meeting the 30-day reporting deadline. So, do not wait to report an injury!
Most states require you to report the work accident to your employer quickly so they can investigate the facts surrounding the injury to decide if it will accept your claim, determine its potential liability, and provide appropriate medical treatment to reduce the severity of your injuries and disability.
Further, a short notice period of a few weeks or months encourages employees to promptly report unsafe work conditions that caused the injury to their employer so that the employer can fix the hazard and prevent other workers from suffering injuries.
Your written notice of the accident should include the following:
If you are unsure what to write down, use my sample letter reporting your work injury as a template.
I recommend giving two copies of this work accident report to your employer. One is for the employer’s records, and the other is for your safekeeping. Ask the employer to stamp the date and time (or write it down and initial it) on your copy.
You can also e-mail or text the information described above to your employer. But keep a copy of what you send.
The Workers Compensation Act does not specify which of your employer’s agents or representatives you should give notice of a work injury.
To avoid any argument that you failed to report the work accident to the right person, I recommend giving written notice to all the people below:
You may also want to tell a coworker or nearby customer about the injury. Doing so helps you develop witness testimony in case the employer disputes the accident happened. However, reporting the accident to these people does not qualify as sufficient notice of the injury to your employer under the Act. Indeed, the presence of coworkers near you when the incident may not constitute actual notice to the employer.
Similarly, reporting a work accident to the Department of Labor and Industry (DOLI) or the Occupational Safety and Health Administration (OSHA) is okay. However, it will not necessarily qualify as timely notice under the Workers Compensation Act unless DOLI or OSHA sends correspondence to the employer within the prescribed notice period.
You may have found this article on the time to report a work accident after the notice period expired. Now you realize the employer has a solid defense for your claim.
Stay calm.
You may be able to overcome the late notice defense. Indeed, because courts must construe and interpret the Workers Compensation Act while considering the law’s humane and beneficial purpose of protecting workers, you can keep your claim alive despite waiting more than 30 days to report a work injury.
Here are some of the ways we have overcome untimely notification of injury:
The Supreme Court of Virginia has held that when an employee does not give written notice, but a foreman or superior officer has actual knowledge of an occupational injury within a reasonable time after the accident occurs, the employer has sufficient notice.
Indeed, an oral report of the accident to a supervisor within 30 days of the incident satisfies the notice requirement.
Similarly, when the owner of the company or an executive witnesses the accident and knows the employee is in pain, the employer cannot ignore these facts and succeed in a notice defense despite not receiving a written report from the employee.
Therefore, the employer cannot raise a successful notice defense if it knows about your job-related injury within 30 days of its occurrence.
I recommend using workers comp discovery to prove actual knowledge if this is a disputed issue in your case.
The Workers Compensation Commission may find the employer had constructive notice under specific facts.
For example, the Commission has found or may find timely notice of the accident, despite giving written notice of the injury within 30 days, when:
Case law holds that the Commission will excuse late notice if an accident, initially regarded as trivial, is later found severe through medical diagnosis.
Likewise, the Commission may excuse delayed reporting of the accident when the employee initially believes the incident aggravated or exacerbated a pre-existing condition like arthritis/degenerative disc disease but later discovers a new injury, such as a herniated disc.
This rationale also applies when medical providers do not diagnose the correct injury until months after the accident. For example, I have represented many injured employees who reported a neck injury to the employer, only to find out later that the neck pain radiated from a shoulder injury such as a torn rotator cuff.
The Commission has found a reasonable excuse for the delay in notice when the employer violated Rule 7.2 of the Commission’s Rules by failing to “post and keep posted, conspicuously, in the … place of business at a located frequented by employees, notice of compliance with the provisions of the Act.”
If you must use this rule to overcome a late notice defense, your attorney may request a site inspection. They will photograph the employer’s place of business to prove the employer does not have a required labor law poster.
You can overcome late notice if your physical or mental condition prevents you from reporting the accident and injury to your employer.
For example, head trauma resulting in traumatic brain injury and coma will stop you from reporting the incident until you regain consciousness.
That said, the employer will likely have actual knowledge or constructive notice of a catastrophic injury that leaves you unconscious or injures your spinal cord and causes paralysis.
As an employee counting on income from your employer to survive financially, you may have several valid reasons for waiting to report an accident at work.
However, experience and past judicial decisions show that courts will not excuse untimely reporting of a workplace injury due to:
Even if you have a reasonable excuse for waiting to report a work injury, the Commission may still deny your claim based on untimely notice if the employer proves the delayed reporting prejudiced it.
There are two ways an employer can show prejudice.
First, an employer can prove prejudice from untimely notice by offering evidence that it could not provide medical treatment to reduce the injury’s severity. Usually, this requires medical opinions that your resulting disability would have been less severe had you given written notice of the accident within 30 days.
Second, the employer can prove prejudice by presenting evidence that the delayed reporting prevented it from investigating your claim or preparing a defense. If the employer has access to the medical providers, witnesses, and documents, it will have difficulty proving prejudice.
The employer will have difficulty proving prejudice due to delayed notice unless you receive extensive medical care (including surgery) before filing a work accident report.
But, even if you have yet to receive significant treatment, you should still pay attention to the Workers Compensation Act’s notice requirement.
Protecting your right to workers compensation benefits that can improve your health and finances is a good reason to report a work-related accident. But it is not the only one.
Many employers have a written policy that requires employees to report on-the-job injuries. Discipline and even termination often result from failing to follow your company’s policy.
In addition to losing your job and current income source, termination based on a failure to report an injury might result in losing your right to indemnity benefits under the Workers Compensation Act. Indeed, the Commission may find that this failure to follow a company policy gives the employer a “justified cause” for termination. Such a finding means the Commission will not award wage loss benefits for periods when light duty restrictions are in place, allowing you to do some job.
No.
The law requires you to report a work accident to your employer. It does not require you to report the incident to the insurance carrier or claim administrator (Sedgwick, Gallagher Bassett, ESIS, Corvel, etc.). The employer has that responsibility.
The days after a work injury are stressful. You worry about your health and finances and try to determine the next step.
But this is not the time to hesitate or put off a decision. You must report a work accident to your employer immediately.
Call me today at 804-251-1620 or 757-810-5614 for help. My law firm can help you meet the injury reporting requirements to recover workers compensation.